Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 123595 December 12, 1997 SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. DAVIDE, JR., J.: In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866, 2 as follows: That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner. 5 At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the
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Republic of the Philippines SUPREME COURT
Manila
EN BANC
G.R. No. 123595 December 12, 1997
SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.
DAVIDE, JR., J.:
In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the
Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar
was charged with violating Section 3 of Presidential Decree No. 1866, 2 as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the
said accused did then and there willfully, unlawfully and knowingly keep,
possess and/or acquire a hand grenade, without first securing the
necessary license and/or permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a
plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1,"
and "A-2," 4 while the prosecution admitted that the police authorities were not armed
with a search warrant nor warrant of arrest at the time they arrested petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its
witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating
officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated
National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990,
at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on
foot patrol with three other police officers (all of them in uniform) along Quezon
Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They
chanced upon two groups of Muslim-looking men, with each group, comprised of three
to four men, posted at opposite sides of the corner of Quezon Boulevard near the
Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes. . . moving
very fast." 6
Yu and his companions positioned themselves at strategic points and observed both
groups for about thirty minutes. The police officers then approached one group of men,
who then fled in different directions. As the policemen gave chase, Yu caught up with
and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation
I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:
1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did
not constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be
admitted as evidence against him; and
2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's
decision.
I wish, however, to correlate the present case with four relevant decisions I authored for
the Court: Manalili vs. Court of Appeals, 1 People vs. Encinada, 2 People
vs. Lacerna 3 and People vs. Cuizon, 4 all of which were promulgated without any
dissenting view. This correlation may be of benefit to the bench, the bar and,
particularly, to law enforcement officers. Let me first present a background on each.
Manalili Involved a
Valid Stop-and-Frisk
In Manalili, anti-narcotics policemen conducted a surveillance in response to information
that drug addicts were roaming the area fronting the city cemetery of Kalookan, and
chanced upon Manalili who was observed to have reddish eyes and to be walking in a
wobbly manner. Because his appearance was characteristic of a person "high on
drugs," the lawmen approached him, introduced themselves and inquired as to what
was in his hands. At first, Manalili resisted but the police prevailed and he showed them
his wallet. The anti-narcotics men found inside what they suspected to be
crushed marijuana residue. They took Manalili to their station for further investigation. A
chromatographic test of the wallet contents positively affirmed the lawmen's suspicions.
Manalili was thus charged, tried and convicted of illegal possession of the prohibited
substance. He subsequently challenged before us the legality of his search and arrest,
and the admission of the marijuana as evidence. He contended that the latter two were
products of the illegal search.
Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The
police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a
drunk . . . [in] a popular hangout of drug addicts," in order to investigate if he was
actually "high" on drugs. The situation verily called for a stop-and-frisk.
Lawmen Had Sufficient Opportunity
to Secure Warrant in Encinada
In Encinada, a police officer received late in the afternoon a tip from an informant that
the following morning, appellant would be arriving at the Surigao port
bringing marijuana. Without securing a search warrant allegedly because courts were
already closed for the day, the lawmen proceeded early next morning to the city wharf.
About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and
thereafter board a tricycle. The police followed immediately and ordered the driver to
stop. After introducing themselves, the policemen asked Encinada to alight and to hand
over his luggage for inspection. Found between the baby chairs was a bulky package
which was later found to contain marijuana. On these particulars, he was charged, tried
and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that
Encinada was caught in flagrante delicto. Hence, the warrantless search following his
arrest was valid, and the marijuana seized was admissible in evidence.
Reversing the trial court, this Court stressed the following: Encinada was not committing
a crime in the presence of the police; the latter did not have personal knowledge of facts
indicating that he just committed an offense; and raw intelligence information was not a
sufficient ground for a warrantless arrest. 5 Furthermore, "[t]he prosecution's evidence
did nor show any suspicious behavior when the appellant disembarked from the ship or
while he rode the motorela. No act or fact demonstrating a felonious enterprise could be
ascribed to appellant under such bare circumstances." 6Having known the identity of
their suspect the previous day, the law enforcers could have secured a warrant of arrest
even within such limited period (per Administrative Circular No. 13 and Circular No. 19,
s. 1987). In emphasizing the importance of according respect to every person's
constitutional right against illegal arrests and searches, the Court exhorted:
Lawmen cannot be allowed to violate every law they are expected to
enforce. [The policeman's] receipt of the intelligence information regarding
the culprit's identity, the particular crime he allegedly committed and his
exact whereabouts underscored the need to secure a warrant for his
arrest. But he failed to do so. Such failure or neglect cannot excuse him
from violating a constitutional right of the appellant. 7
. . . That the search disclosed a prohibited substance in appellant's
possession and thus confirmed the police officers' initial information and
suspicion, did not cure its patent illegality. An illegal search cannot be
undertaken and then an arrest effected on the strength of the evidence
yielded by the search. 8
Consent Validated an Otherwise
Illegal Search in Lacerna
In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed
their heads and slouched when they passed through the checkpoint he was manning,
making him suspect that something was amiss. He signaled the driver to stop, then
asked permission to search the vehicle. The occupants consented. Found inside a
plastic bag were several blocks wrapped in newspaper, which were later discovered to
contain marijuana. Lacerna questioned his warrantless arrest and seizure, claiming that
they were violative of his constitutional rights.
The Court, despite declaring that the prior attendant circumstances did not justify a
warrantless search and seizure, ruled that the search was valid, not because Lacerna
was caught in flagrante delicto, but because he freely consented to the search.
Although appellant and his companion were stopped by the police on mere suspicion —
without probable cause — that they were engaged in a felonious enterprise, the Court
stressed that their permission for the search was expressly sought and obtained by the
law enforcers. This consent validated the search, waiver being a generally recognized
exception to the rule against warrantless search. 9 The marijuana, therefore, was
admissible in evidence. "There was no poisonous tree to speak of."
Mere Suspicion of Criminal Activity
Did Not Justify Search of Cuizon
Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month,
received in the morning a tip from an informant that Cuizon and his wife were arriving at
NAIA that same day, bringing a large quantity of shabu. A team was immediately
organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon
spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to
Pua and Lee who thereafter bearded a taxicab, while the Cuizons took a different
vehicle. The NBI team members posted at the NAIA parking area, however, failed to
intercept the suspects. The team merely trailed the taxicab which proceeded to the
Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their
hotel room, the team asked permission to search their bags in the presence of the
hotel's chief security officer. Pua and Lee consented in writing. Found inside three of the
four bags similar to those handed to them by Cuizon at the airport were plastic
packages of white crystalline substances which, upon later examination, were confirmed
to be shabu. Taking with them the two accused (who, however, did not implicate
Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag
allegedly containing the same substance. The three were charged and convicted of
illegal transport of the regulated drug. On appeal, only Cuizon challenged the validity of
his warrantless arrest, search and seizure.
Reiterating the doctrine that "where a person is searched without a warrant, and under
circumstances other than chose justifying a warrantless arrest . . . , upon a mere
suspicion that he has embarked on some criminal activity, and/or for the purpose of
discovering if indeed a crime has been committed by him, then the search made of such
person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the
arrest of Cuizon as well as the incidental search and seizure. The warrantless arrest
and search were not justified by the rules on "in flagrante delicto" or "hot pursuit" for, at
the time of his arrest, Cuizon was inside his home resting with his wife and child. No
offense had just been committed or was actually being committed or attempted by him
in the presence of the lawmen, nor did the latter have personal knowledge of facts
indicating that Cuizon authored an offense that had just in fact been committed.
Consequently, any evidence obtained during the illegal search, "even if tending to
confirm or actually confirming the initial suspicion, is absolutely inadmissible for any
purpose and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11
The same would have been true as regards Pua and Lee. But Pua effectively waived
his right against the warrantless search when he agreed in writing for the NBI team to
search his luggage. Besides, he failed to challenge the validity of his arrest and search
and the admission of the evidence obtained thereby. However, the case against Lee,
who could not speak English or Filipino, was remanded for a retrial, because he was
effectively denied his right to counsel; for although he was provided with one, he could
not understand and communicate with him concerning his defense.
After reviewing previous decisions on valid warrantless arrests and searches, the Court
underscored in sum that there was need for facts providing probable cause, such as the
"distinct odor of marijuana, reports about drug transporting or positive identification by
informers, suspicious behavior, attempt to flee, [or] failure to produce identification
papers" to justify warrantless arrests and searches. Likewise, urgency must attend such
arrests and searches, as where motor vehicles are used and there is great probability
that the suspect would get away before a warrant can be procured. Most important is
that the law enforcers must act immediately on the information received, suspicions
raised or probable cause established, and should effect the arrests and searches
without any delay. 12
Instant Case Correlated
with Four Cited
Now to the correlation with the case at bar.
(1) As in Manalili, lawmen were on surveillance in response to information that a
criminal activity could be in the offing at a specified place. The stark difference,
however, is that in Manalili, the reported activity involved drug use and the lawmen
belonged to the anti-narcotics group, while in the instant case, the police on patrol were
ordinary law enforcers on the lookout for possible bombers. In the former, the law
enforcers concerned may be presumed to possess special knowledge and skill to detect
the physical features exhibited by a current drug user. Thus, when these specially
trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner
characteristic of a person "high" on drugs per their experience, and in a known hangout
of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well
to emphasize that under different circumstances, such as where the policemen are not
specially trained, and in common places where people ordinarily converge, the same
features displayed by a person will not normally justify a warrantless arrest or search on
him.
The case before us presents such a situation. The policemen merely observed that
Malacat's eyes were moving very fast. They did not notice any bulges or packets about
the bodies of these men indicating that they might be hiding explosive paraphernalia.
From their outward look, nothing suggested that they were at the time armed and
dangerous. Hence, there was no justification for a stop-and-frisk.
(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the
suspects, none of the actions of Accused Encinada and Cuizon were beyond normal as
to suggest that they were then engaged in felonious activities. The simple handing over
of the baggage by Cuizon to Pua and Lee was far from being indicative of any illegal
activity. Such act by itself does not, by any stretch of imagination, even appear to be
suspicious. Granting that indeed an offense was committed by Cuizon at the airport, his
subsequent arrest cannot even be justified under the rule on "hot pursuit." He did not
attempt to flee, but was actually able to leave the premises and reach his house
unhampered by the police. There was considerable interruption between the supposed
commission of the crime and his subsequent arrest in his house where he was already
resting.
Moreover, Encinada and Cuizon had been previously identified and subjected to
surveillance. Police informants themselves, presumably reliable, tipped off their alleged
criminal activity. Specifically with respect to Encinada, there was sufficient time to priorly
obtain a warrant for his arrest. It must be stressed that raw unverified intelligence
information alone is not sufficient to justify a warrantless arrest or search. That is why it
is important to bring one's evidence before a judge who shall independently determine if
probable cause exists for the issuance of the warrant. It is not for the police to make
such determination.
As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept
him which foiled his arrest and search. In the present case, if it were true that the
arresting officer saw Malacat two days earlier attempting to detonate a grenade in the
same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest
there and then and, further, their inability to effectively investigate and identify the culprit
— so as to have obtained a lawful arrest warrant — that hindered his valid seizure
thereafter.
(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when
they passed through the police checkpoint. Although such acts could raise suspicions,
they did not provide sufficient reason for the police to stop and investigate them for
possible criminal operation; much less, to conduct an extensive search of their
belongings. A checkpoint search is limited to a roving view within the vehicle. A further
search may be validly effected only if something probably illegal is within his "plain
view." In Lacerna, if not for the passengers' free and express consent, the search would
have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat,
although connoting unusual behavior, was not indicative that he was armed and
dangerous as to justify a search on his person.
Mengote Supports
Present Ponencia
Bolstering the invalidity of the arrest and search of Malacat is People
vs. Mengote, 13 another classic on the right against unreasonable searches and
seizures. Upon receiving a telephone call shortly before noon from an informer that
there were suspicious-looking persons at a certain street corner in Tondo, Manila, the
Western Police District dispatched a surveillance team to said place. There they saw
two men "looking from side to side" with one" holding his abdomen." The police
approached them and identified themselves, whereupon the two tried to flee but failed
as other lawmen surrounded them. The suspects were searched, and recovered from
Mengote was a fully loaded pistol; from his companion, a fan knife.
The Court ruled that the situation was not one calling for a lawful warrantless search
and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What
offense could possibly have been suggested by a person 'looking from side to side' and
'holding his abdomen' and in a place not exactly forsaken?"
. . . [T]here could have been a number of reasons, all of them innocent,
why his eyes were darting from side to side and he was holding his
abdomen. If they excited suspicion in the minds of the arresting officers,
as the prosecution suggests, it has nevertheless not been shown what
their suspicion was all about. In fact, the policemen themselves testified
that they were dispatched to that place only because of the telephone call
from the informer that there were 'suspicious-looking' persons in that
vicinity who were about to commit a robbery at North Bay Boulevard. The
caller did not explain why he thought the men looked suspicious nor did he
elaborate on the impending crime. 14
In closing, the Court lamented and thus warned:
It would be a sad day, indeed, if any person could be summarily arrested
and searched just because he is holding his abdomen, even if it be
possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may have
committed a criminal act or is actually committing or attempting it. This
simply cannot be done in a free society. This is not a police state where
order is exalted over liberty or, worse, personal malice on the part of the
arresting officer may be justified in the name of security. 15
Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side
to side can in no way justify a stop-and-frisk. To convict a person on the basis only of
his queer behavior and to sentence him to practically a lifetime in prison would simply
be unfathomable. Nothing can be more wrong, unjust and inhuman.
WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner
Sammy Malacat y Mandar.
Separate Opinions
PANGANIBAN, J., separate opinion:
I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:
1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did
not constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be
admitted as evidence against him; and
2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's
decision.
I wish, however, to correlate the present case with four relevant decisions I authored for
the Court: Manalili vs. Court of Appeals, 1 People vs. Encinada, 2 People
vs. Lacerna 3 and People vs. Cuizon, 4 all of which were promulgated without any
dissenting view. This correlation may be of benefit to the bench, the bar and,
particularly, to law enforcement officers. Let me first present a background on each.
Manalili Involved a
Valid Stop-and-Frisk
In Manalili, anti-narcotics policemen conducted a surveillance in response to information
that drug addicts were roaming the area fronting the city cemetery of Kalookan, and
chanced upon Manalili who was observed to have reddish eyes and to be walking in a
wobbly manner. Because his appearance was characteristic of a person "high on
drugs," the lawmen approached him, introduced themselves and inquired as to what
was in his hands. At first, Manalili resisted but the police prevailed and he showed them
his wallet. The anti-narcotics men found inside what they suspected to be
crushed marijuana residue. They took Manalili to their station for further investigation. A
chromatographic test of the wallet contents positively affirmed the lawmen's suspicions.
Manalili was thus charged, tried and convicted of illegal possession of the prohibited
substance. He subsequently challenged before us the legality of his search and arrest,
and the admission of the marijuana as evidence. He contended that the latter two were
products of the illegal search.
Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The
police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a
drunk . . . [in] a popular hangout of drug addicts," in order to investigate if he was
actually "high" on drugs. The situation verily called for a stop-and-frisk.
Lawmen Had Sufficient Opportunity
to Secure Warrant in Encinada
In Encinada, a police officer received late in the afternoon a tip from an informant that
the following morning, appellant would be arriving at the Surigao port
bringing marijuana. Without securing a search warrant allegedly because courts were
already closed for the day, the lawmen proceeded early next morning to the city wharf.
About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and
thereafter board a tricycle. The police followed immediately and ordered the driver to
stop. After introducing themselves, the policemen asked Encinada to alight and to hand
over his luggage for inspection. Found between the baby chairs was a bulky package
which was later found to contain marijuana. On these particulars, he was charged, tried
and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that
Encinada was caught in flagrante delicto. Hence, the warrantless search following his
arrest was valid, and the marijuana seized was admissible in evidence.
Reversing the trial court, this Court stressed the following: Encinada was not committing
a crime in the presence of the police; the latter did not have personal knowledge of facts
indicating that he just committed an offense; and raw intelligence information was not a
sufficient ground for a warrantless arrest. 5 Furthermore, "[t]he prosecution's evidence
did nor show any suspicious behavior when the appellant disembarked from the ship or
while he rode the motorela. No act or fact demonstrating a felonious enterprise could be
ascribed to appellant under such bare circumstances." 6Having known the identity of
their suspect the previous day, the law enforcers could have secured a warrant of arrest
even within such limited period (per Administrative Circular No. 13 and Circular No. 19,
s. 1987). In emphasizing the importance of according respect to every person's
constitutional right against illegal arrests and searches, the Court exhorted:
Lawmen cannot be allowed to violate every law they are expected to
enforce. [The policeman's] receipt of the intelligence information regarding
the culprit's identity, the particular crime he allegedly committed and his
exact whereabouts underscored the need to secure a warrant for his
arrest. But he failed to do so. Such failure or neglect cannot excuse him
from violating a constitutional right of the appellant. 7
. . . That the search disclosed a prohibited substance in appellant's
possession and thus confirmed the police officers' initial information and
suspicion, did not cure its patent illegality. An illegal search cannot be
undertaken and then an arrest effected on the strength of the evidence
yielded by the search. 8
Consent Validated an Otherwise
Illegal Search in Lacerna
In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed
their heads and slouched when they passed through the checkpoint he was manning,
making him suspect that something was amiss. He signaled the driver to stop, then
asked permission to search the vehicle. The occupants consented. Found inside a
plastic bag were several blocks wrapped in newspaper, which were later discovered to
contain marijuana. Lacerna questioned his warrantless arrest and seizure, claiming that
they were violative of his constitutional rights.
The Court, despite declaring that the prior attendant circumstances did not justify a
warrantless search and seizure, ruled that the search was valid, not because Lacerna
was caught in flagrante delicto, but because he freely consented to the search.
Although appellant and his companion were stopped by the police on mere suspicion —
without probable cause — that they were engaged in a felonious enterprise, the Court
stressed that their permission for the search was expressly sought and obtained by the
law enforcers. This consent validated the search, waiver being a generally recognized
exception to the rule against warrantless search. 9 The marijuana, therefore, was
admissible in evidence. "There was no poisonous tree to speak of."
Mere Suspicion of Criminal Activity
Did Not Justify Search of Cuizon
Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month,
received in the morning a tip from an informant that Cuizon and his wife were arriving at
NAIA that same day, bringing a large quantity of shabu. A team was immediately
organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon
spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to
Pua and Lee who thereafter bearded a taxicab, while the Cuizons took a different
vehicle. The NBI team members posted at the NAIA parking area, however, failed to
intercept the suspects. The team merely trailed the taxicab which proceeded to the
Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their
hotel room, the team asked permission to search their bags in the presence of the
hotel's chief security officer. Pua and Lee consented in writing. Found inside three of the
four bags similar to those handed to them by Cuizon at the airport were plastic
packages of white crystalline substances which, upon later examination, were confirmed
to be shabu. Taking with them the two accused (who, however, did not implicate
Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag
allegedly containing the same substance. The three were charged and convicted of
illegal transport of the regulated drug. On appeal, only Cuizon challenged the validity of
his warrantless arrest, search and seizure.
Reiterating the doctrine that "where a person is searched without a warrant, and under
circumstances other than chose justifying a warrantless arrest . . . , upon a mere
suspicion that he has embarked on some criminal activity, and/or for the purpose of
discovering if indeed a crime has been committed by him, then the search made of such
person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the
arrest of Cuizon as well as the incidental search and seizure. The warrantless arrest
and search were not justified by the rules on "in flagrante delicto" or "hot pursuit" for, at
the time of his arrest, Cuizon was inside his home resting with his wife and child. No
offense had just been committed or was actually being committed or attempted by him
in the presence of the lawmen, nor did the latter have personal knowledge of facts
indicating that Cuizon authored an offense that had just in fact been committed.
Consequently, any evidence obtained during the illegal search, "even if tending to
confirm or actually confirming the initial suspicion, is absolutely inadmissible for any
purpose and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11
The same would have been true as regards Pua and Lee. But Pua effectively waived
his right against the warrantless search when he agreed in writing for the NBI team to
search his luggage. Besides, he failed to challenge the validity of his arrest and search
and the admission of the evidence obtained thereby. However, the case against Lee,
who could not speak English or Filipino, was remanded for a retrial, because he was
effectively denied his right to counsel; for although he was provided with one, he could
not understand and communicate with him concerning his defense.
After reviewing previous decisions on valid warrantless arrests and searches, the Court
underscored in sum that there was need for facts providing probable cause, such as the
"distinct odor of marijuana, reports about drug transporting or positive identification by
informers, suspicious behavior, attempt to flee, [or] failure to produce identification
papers" to justify warrantless arrests and searches. Likewise, urgency must attend such
arrests and searches, as where motor vehicles are used and there is great probability
that the suspect would get away before a warrant can be procured. Most important is
that the law enforcers must act immediately on the information received, suspicions
raised or probable cause established, and should effect the arrests and searches
without any delay. 12
Instant Case Correlated
with Four Cited
Now to the correlation with the case at bar.
(1) As in Manalili, lawmen were on surveillance in response to information that a
criminal activity could be in the offing at a specified place. The stark difference,
however, is that in Manalili, the reported activity involved drug use and the lawmen
belonged to the anti-narcotics group, while in the instant case, the police on patrol were
ordinary law enforcers on the lookout for possible bombers. In the former, the law
enforcers concerned may be presumed to possess special knowledge and skill to detect
the physical features exhibited by a current drug user. Thus, when these specially
trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner
characteristic of a person "high" on drugs per their experience, and in a known hangout
of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well
to emphasize that under different circumstances, such as where the policemen are not
specially trained, and in common places where people ordinarily converge, the same
features displayed by a person will not normally justify a warrantless arrest or search on
him.
The case before us presents such a situation. The policemen merely observed that
Malacat's eyes were moving very fast. They did not notice any bulges or packets about
the bodies of these men indicating that they might be hiding explosive paraphernalia.
From their outward look, nothing suggested that they were at the time armed and
dangerous. Hence, there was no justification for a stop-and-frisk.
(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the
suspects, none of the actions of Accused Encinada and Cuizon were beyond normal as
to suggest that they were then engaged in felonious activities. The simple handing over
of the baggage by Cuizon to Pua and Lee was far from being indicative of any illegal
activity. Such act by itself does not, by any stretch of imagination, even appear to be
suspicious. Granting that indeed an offense was committed by Cuizon at the airport, his
subsequent arrest cannot even be justified under the rule on "hot pursuit." He did not
attempt to flee, but was actually able to leave the premises and reach his house
unhampered by the police. There was considerable interruption between the supposed
commission of the crime and his subsequent arrest in his house where he was already
resting.
Moreover, Encinada and Cuizon had been previously identified and subjected to
surveillance. Police informants themselves, presumably reliable, tipped off their alleged
criminal activity. Specifically with respect to Encinada, there was sufficient time to priorly
obtain a warrant for his arrest. It must be stressed that raw unverified intelligence
information alone is not sufficient to justify a warrantless arrest or search. That is why it
is important to bring one's evidence before a judge who shall independently determine if
probable cause exists for the issuance of the warrant. It is not for the police to make
such determination.
As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept
him which foiled his arrest and search. In the present case, if it were true that the
arresting officer saw Malacat two days earlier attempting to detonate a grenade in the
same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest
there and then and, further, their inability to effectively investigate and identify the culprit
— so as to have obtained a lawful arrest warrant — that hindered his valid seizure
thereafter.
(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when
they passed through the police checkpoint. Although such acts could raise suspicions,
they did not provide sufficient reason for the police to stop and investigate them for
possible criminal operation; much less, to conduct an extensive search of their
belongings. A checkpoint search is limited to a roving view within the vehicle. A further
search may be validly effected only if something probably illegal is within his "plain
view." In Lacerna, if not for the passengers' free and express consent, the search would
have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat,
although connoting unusual behavior, was not indicative that he was armed and
dangerous as to justify a search on his person.
Mengote Supports
Present Ponencia
Bolstering the invalidity of the arrest and search of Malacat is People
vs. Mengote, 13 another classic on the right against unreasonable searches and
seizures. Upon receiving a telephone call shortly before noon from an informer that
there were suspicious-looking persons at a certain street corner in Tondo, Manila, the
Western Police District dispatched a surveillance team to said place. There they saw
two men "looking from side to side" with one" holding his abdomen." The police
approached them and identified themselves, whereupon the two tried to flee but failed
as other lawmen surrounded them. The suspects were searched, and recovered from
Mengote was a fully loaded pistol; from his companion, a fan knife.
The Court ruled that the situation was not one calling for a lawful warrantless search
and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What
offense could possibly have been suggested by a person 'looking from side to side' and
'holding his abdomen' and in a place not exactly forsaken?"
. . . [T]here could have been a number of reasons, all of them innocent,
why his eyes were darting from side to side and he was holding his
abdomen. If they excited suspicion in the minds of the arresting officers,
as the prosecution suggests, it has nevertheless not been shown what
their suspicion was all about. In fact, the policemen themselves testified
that they were dispatched to that place only because of the telephone call
from the informer that there were 'suspicious-looking' persons in that
vicinity who were about to commit a robbery at North Bay Boulevard. The
caller did not explain why he thought the men looked suspicious nor did he
elaborate on the impending crime. 14
In closing, the Court lamented and thus warned:
It would be a sad day, indeed, if any person could be summarily arrested
and searched just because he is holding his abdomen, even if it be
possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may have
committed a criminal act or is actually committing or attempting it. This
simply cannot be done in a free society. This is not a police state where
order is exalted over liberty or, worse, personal malice on the part of the
arresting officer may be justified in the name of security. 15
Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side
to side can in no way justify a stop-and-frisk. To convict a person on the basis only of
his queer behavior and to sentence him to practically a lifetime in prison would simply
be unfathomable. Nothing can be more wrong, unjust and inhuman.
WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner
Sammy Malacat y Mandar.
Footnotes
1 Original Record (OR), 1.
2 Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition, of Firearms, Ammunition or Explosives or Instruments used in the Manufacture of Firearms, Ammunition or Explosives; and Imposing Stiffer Penalties for Certain Violations thereof and for Relevant Purposes.
3 OR, 9.
4 The affidavit of arrest, booking sheet and letter-referral to the prosecutor, respectively.
5 OR, 21.
6 Transcript of Stenographic Notes (TSN), 14 April 1993, 12.
7 TSN, 14 April 1993, 13.
8 TSN, 14 April 1993, 14.
9 Id., 15-21.
10 Spelled as Suquila in the Affidavit of Arrest; Exhibit A; Rollo, CA-G.R. CR No. 15988 [CA Rollo] 7.
11 TSN 14 April 1993, 3-9.
12 TSN, 14 April 1993, 9.
13 TSN, 27 October 1992, 2-5.
14 TSN, 11 June 1993, 2-5.
15 Citing Posadas v. Court of Appeals, 188 SCRA 288 [1990].
16 Citing 1 JOAQUIN G. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, A COMMENTARY, 124 (1987 ed.) [hereinafter 1 BERNAS].
17 Citing Schmerber v. California, 384 U.S. 757; 86 S. CT. 1826; 16 L: Ed. 2d. 908 (1966).
18 Citing ISAGANI A. CRUZ, CONSTITUTIONAL LAW 141 (1987 ed.).
19 OR, 196-200; Annex "A" [should be "E"] of Petition, Rollo, 91-95. Per Judge Cesar Mindaro.
20 OR, 208.
21 CA Rollo, 37.
22 Id., 49 et seq.
23 210 SCRA 174 [1992].
24 Id., 84-100.
25 Annex "A" of the Petition, Rollo, 34-41. Per Garcia, C., J., ponente, with Labitoria, E., and Aliño-Hormachuelos, P., JJ., concurring.
26 Supra note 23.
27 Said Section provides:
Sec. 9. Jurisdiction. — The Court of Appeals shall exercise:
xxx xxx xxx
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards, or commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.
28 The Section pertinently reads:
Sec. 17. Jurisdiction of the Supreme Court. — . . . The Supreme Court shall have exclusive jurisdiction to review, revise, reverse, modify or affirm on appeal, as the law or rules of court may provide, final judgments and decrees of inferior courts as herein provided, in —
(1) All criminal cases involving offenses for which the penalty imposed is death or life imprisonment; and those involving other offenses which, although not so punished, arose out of the same
occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the mere serious offense, regardless of whether the accused are charged as principals, accomplices or accessories, or whether they have been tried jointly or separately;
xxx xxx xxx
29 The Section relevantly reads
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of the lower courts in:
xxx xxx xxx
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. . . .
30 The Section provides:
Sec. 3. How appeal taken. —
xxx xxx xxx
The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment, or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that give rise to the more serious offense for which the penalty of death or life imprisonment is imposed. . . .
31 Art. III, Section 2, Constitution.
32 See 1 BERNAS 86 (1987).
33 Mustang Lumber Inc. v. Court of Appeals, 257 SCRA 430, 450 [1996].
34 Moreno v. Ago Chi, 12 Phil. 439 (1909); Rule 126, Section 12, Rules of Court.
35 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968].
36 See REX D. DAVIS, FEDERAL, SEARCHES AND SEIZURES 96-98, 120 [1964].
37 People v. Malmstedt, 198 SCRA 401, 422 [1991] per Narvasa, C.J., concurring and dissenting.
38 1 BERNAS 105.
39 Terry, at 911. In fact, the Court noted that the "sole justification" for a stop-and-frisk was the "protection of the police officer and others nearby;" while the scope of the search conducted in the case was limited to patting down the outer clothing of petitioner and his companions, the police officer did not place his hands in their pockets nor under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. This did not constitute a general exploratory search, Id.
See MICHELE G. HERMANN, SEARCH AND SEIZURE CHECKLISTS 202 [1994] (hereinafter HERMANN): "Nothing in Terry can be understood to allow a generalized cursory search for weapons or, indeed, any search whatever for anything but weapons," quoting from Ybarra v. Illinois, 444 U.S. 85, 93-94 [1979].
40 We have held that probable cause means a fair probability that contraband or evidence of a crime will be found, . . . and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, in HERMANN, at 187, quoting from United States v. Sokolow, 490 U.S. 1, 7 [1989].
Thus, it may be said that a brief on-the-street seizure does not require as much evidence of probable cause as one which involves taking the individual to the station, as the former is relatively short, less conspicuous, less humiliating, in 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §9.1(d), at 342 [2nd ed. 1987] (emphasis supplied).
It is necessary to determine if "stop and frisk" may be distinguished from arrest and search, knowing that the justification of stopping and frisking is less than the probable cause to arrest and search, in 1 JOSEPH A. VARON, SEARCHES, SEIZURES AND IMMUNITIES 81 [2nd ed. 1974] (hereinafter 1 VARON) (emphasis supplied).
41 See 1 VARON, at 84.
42 TSN, 14 April 1993, 19-20.
43 RTC Decision, 2; CA Rollo, 28.
PANGANIBAN, J., separate opinion:
1 G.R. No. 113447, October 9, 1997.
2 G.R. No. 116720, October 2, 1997.
3 G.R. No. 109250, September 5, 1997.
4 256 SCRA 325, April 18, 1996.
5 People vs. Encinada, supra, pp. 17-18.
6 Ibid., pp. 18-19.
7 Ibid., pp. 21-22.
8 Ibid., p. 24.
9 Citing People vs. Fernandez, 239 SCRA 174, December 13, 1994, Aniag Jr. vs. Comelec, 237 SCRA 424, October 7, 1994, and other cases.